Particular AllegationsTime and Date
Except when time is an essential element of the offense, the
allegation is not material to the sufficiency of the indictment if
the error or
variance in proof is within reasonable limits. Time was material
indictment charging a willful failure to file an income tax return
by the April
15 deadline. Therefore, evidence showing that the defendant had
filing extension until May 7 of that year caused a fatal variance.
United States v. Bowman, 783 F.2d 1192 (5th Cir. 1986);
v. Cochran, 697 F.2d 600 (5th Cir. 1983); United States v.
502 F.2d 526 (3d Cir. 1974). ("[V]ariance between dates alleged and
will not trigger reversal. . . as long as the date proved falls
statute of limitations and before the return date of the
States v. Alexander, 850 F.2d 1500, 1504 (11th Cir. 1988),
United States v. Harrell, 737 F.2d 971, 981 (11th Cir.
denied, 469 U.S. 1164 (1985) (omission in original). See
Russell v. United States, 429 F.2d 237 (5th Cir. 1970).|
Courts have allowed considerable leeway as to the specificity
alleged date of an offense in an indictment. Using the phrase "on
or about" is
proper. United States v. Giles, 756 F.2d 1085 (5th Cir.
hornbook law that great generality is allowed as to the alleged
date of an
offense in an indictment, it was held that a count charging that an
smuggling offense took place "on or about 1977, the exact date to
the grand jury
unknown" was within reasonable limits. See United States
668 F.2d 10, 11 (1st Cir. 1981).
One court has reasoned that the more specific the time
stronger is the inference that the grand jury was only indicting a
acts occurring on the specific dates charged, whereas use of the
phrase, "on or about" indicated a grand jury unwillingness to
pinpoint the date
of the offense charged. See United States v. Somers,
496 F.2d 723,
745 (3d Cir), cert. denied, 419 U.S. 832 (1974). Thus, a
was held to have occurred when an indictment charged that the
extortionate acts occurred "on October 7 and October 8, 1962," but
showed such acts occurred on August 10 and October 5, 1962.
States v. Critchley, 353 F.2d 358 (3d Cir. 1965). In contrast,
the court in
United States v. Grapp, 653 F.2d 189 (5th Cir. 1981),
readily rejected a
variance claim when the proof at trial showed that the time of the
the middle of 1977 and the indictment charged it had occurred "on
or about May